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A recipe for mistaken convictions: why federal rule of evidence 403 should be used to exclude unreliable eyewitness-identification evidence.

"[E]yewitness testimony is likely to be believed by jurors, especially when it is offered with a high level of confidence, even though the accuracy of an eyewitness and the confidence of that witness may not be related to one another at all. All the evidence points rather strikingly to the conclusion that there is almost nothing more convincing than a live human being who takes the stand, points a finger at the defendant, and says 'That's the one!"' (1)


Eyewitness misidentification is the leading cause of mistaken convictions in the United States. (2) Presently, more than 300 people have been exonerated through postconviction DNA evidence. (3) The average sentence served in these cases, at the time of exoneration, was 13.6 years. (4) Out of these 300 exonerations, eyewitness misidentification played a part in nearly 75% of the convictions. (5) Scientific studies of eyewitness identification began to develop in the late 1970s, frequently the subject of psychological rather than legal journals. (6) The Supreme Court has not directly revisited the topic of eyewitness identification since 1977, despite significant progress in related scientific research over the past thirty years. (7)

Defense attorneys have attempted to use expert testimony to combat the prejudicial effects of unreliable eyewitness-identification evidence, with mixed results regarding admissibility. (8) Some courts provide jury instructions on the potential unreliability of eyewitness identifications, and many jurisdictions are beginning to update their identification procedures to better align with current scientific understanding of memory. (9) While these remedies are important, they do not provide a sufficient safeguard against the potential for wrongful convictions caused by eyewitness misidentifications. (10)

In order to prevent wrongful convictions, judges should use their gatekeeping powers under Federal Rule of Evidence (FRE) 403 to exclude unreliable eyewitness-identification evidence from use at trial. (11) FRE 403 is currently used to exclude classifications of evidence where juries are likely to be irrationally persuaded. (12) Additionally, trial judges already have significant gatekeeping responsibilities under the Federal Rules of Evidence with regard to other areas of evidence, including character evidence and expert testimony. (13)

This Note will discuss some of the most thoroughly studied causes of eyewitness misidentification and suggest that trial judges use their discretion under FRE 403 to exclude unreliable eyewitness-identification evidence. (14) The first part of this Note will provide an overview of scientific research from the last thirty years relating to memory and eyewitness identification. (15) The second part of this Note will discuss current procedures for combating misidentifications, analogous situations where FRE 403 is used for exclusion, and gatekeeping capacities of trial judges. (16) Lastly, the third part of this Note will present arguments for using FRE 403 to exclude unreliable eyewitness-identification evidence. (17)

II. History

Recent developments in scientific research have shown that eyewitness-identification accuracy depends on many situational factors, both within and outside of law enforcement agencies' control. (18) In recognition of the potential for unreliability, some jurisdictions have updated their eyewitness-identification procedures in order to produce more reliable identifications. (19) Additionally, some courts allow eyewitness-expert testimony and jury instructions on the topic of eyewitness-identification unreliability. (20) The Supreme Court's framework for excluding unreliable eyewitness-identification evidence has not been updated since 1977. (21)

A. Thirty Years of Research Shows that Memory Is Malleable

While scientists have studied the accuracy of eyewitness identifications for more than 100 years, the development of extensive, programmatic research in this area did not begin until the late 1970s. (22) Scientists have since identified different variables that are significant to the evaluation of eyewitness-identification evidence. (23) These variables are generally divided into two categories: system variables and estimator variables. (24) System variables are those in the eyewitness-identification process that are within the control of the criminal-justice system, while estimator variables are those that the criminal-justice system cannot control. (25) The New Jersey Supreme Court recently appointed a Special Master to extensively probe the past thirty years of scientific research on memory and eyewitness identification, and incorporated the research into a decision that changed the state's treatment of eyewitness-identification evidence. (26) This Note utilizes the wealth of research collected by the Special Master, specifically with regard to the identified variables for determining eyewitness-identification reliability. (27)

1. System Variables

Eight system variables are relevant to a discussion of the evaluation of eyewitness-identification evidence. (28) The first three system variables are: blind versus nonblind lineups, preidentification witness instructions, and lineup construction. (29) Studies show that blind and double-blind lineups are far more reliable than nonblind lineups. (30) A blind lineup occurs when the lineup administrator knows the identity of the suspect but does not know where the suspect is located within the lineup or photo array. (31) Double-blind lineups, where the lineup or photo array administrator does not know the identity of the suspect, are shown to produce the most accurate identifications. (32) Eyewitness identifications are also more accurate when the eyewitness is told prior to seeing the lineup or photo array that he or she need not pick a suspect. (33) The lineup-construction variable includes the percentage of nonsuspect persons in the lineup, the number of suspects in the lineup, and the relative physical similarity between the suspects and nonsuspects. (34) Studies show that eyewitness identifications are more likely to be accurate when the lineup contains only one suspect, when the suspect looks similar to other members of the lineup, and when the lineup consists of at least five nonsuspects, called "fillers." (35)

The fourth, fifth, and sixth system variables are: postidentification feedback, the witness's level of confidence in the identification, and whether the eyewitness viewed the suspect multiple times during the investigatory process. (36) Lineup administrators may intentionally or unintentionally signal to the eyewitness that he or she identified the suspect, thereby providing postidentification feedback. (37) This behavior can cause the eyewitness to have increased confidence in his or her decision, regardless of whether the eyewitness actually identified the perpetrator. (38) Contrary to common belief, an eyewitness's confidence in his or her identification does not necessarily correlate with accuracy. (39) Identifications are, however, more likely to be accurate if the eyewitness has not previously viewed investigatory photographs of any members of the lineup. (40)

The final system variables are: whether a facial composite or a "showup" was used in the identification process. (41) While it is unclear whether creating a composite has an effect on the eyewitness's memory, research suggests that composites are not likely to bear a strong resemblance to the actual perpetrator. (42) A showup occurs when an eyewitness views a single suspect, presented by the police for purposes of identification, usually at the scene of the crime and shortly after the crime was committed. (43) Timing is an important factor for the showup procedure because showups are more likely to produce unreliable results when conducted more than two hours after the commission of a crime. (44)

2. Estimator Variables

Nine estimator variables are relevant to this discussion. (45) The first four estimator variables are: stress, weapon focus, duration of the eyewitness's encounter, and lighting and distance. (46) Research shows that a high level of stress during an encounter negatively impacts an eyewitness's ability to make an accurate identification at a later time. (47) Similarly, when a weapon was present during an encounter, the eyewitness is likely to be approximately ten percent less accurate when later attempting to make an identification. (48) Not surprisingly, research shows that eyewitnesses generally make more accurate identifications after a longer encounter with the perpetrator. (49) Eyewitnesses also make more accurate identifications when they were closer to the perpetrator during the encounter, and when lighting conditions during the encounter were favorable. (50)

The remaining estimator variables relevant to this analysis are: witness characteristics, perpetrator characteristics, memory decay, race bias, and actions of private actors. (51) Research shows that factors such as eyewitness intoxication have significant negative effects on identification accuracy. (52) Disguises and differences in the perpetrator's facial hair between the encounter with the eyewitness and the lineup also produce less accurate identifications. (53) Additionally, research confirms the common notion that memories irreversibly decay with time. (54) Eyewitnesses are significantly less likely to make accurate identifications when they are of a different race than the perpetrator. (55) In addition to law-enforcement officers, nonstate actors can also interfere with eyewitnesses' memories and increase the risk of inaccurate identifications. (56)

B. Current Attempts to Remedy the Misidentification Problem

Many members of the legal community have recognized that eyewitness misidentifications pose a significant problem. (57) Some jurisdictions have taken steps to adjust police procedures to align with current scientific data on how to prevent misidentifications, and others allow defendants to present expert testimony at trial on the subject of eyewitness identification and the fallibility of memory. (58) Many courts also provide jury instructions designed to inform jurors about the potential for unreliability in the eyewitness-identification process. (59) The Supreme Court, for its part, has not directly addressed the misidentification issue in over thirty years. (60)

1. The Supreme Court's Framework: Unchanged Since 1977

The Supreme Court has not directly revisited the topic of eyewitness identification since 1977 in Manson v. Brathwaite, (61) when the Court established a reliability test for eyewitness-identification admissibility. The Manson test consists of two prongs for determining admissibility of eyewitness-identification evidence: whether the eyewitness-identification evidence was obtained in an unnecessary and suggestive procedure, and whether the evidence is reliable despite the suggestive procedure. (63) The Manson Court was concerned with the constitutional question of whether unreliable eyewitness evidence would render a trial fundamentally unfair, in violation of the Due Process Clause. (64) The Court noted five factors for determining overall reliability of eyewitness identifications despite use of suggestive procedures: the eyewitness's view of the perpetrator; the eyewitness's degree of attention during the encounter; the accuracy of the eyewitness's prior description of the perpetrator; the eyewitness's demonstrated level of certainty of the identification; and the time elapsed between the initial encounter and the identification. (65) The Court did not incorporate scientific research on eyewitness memory into its decision. (66) The Supreme Court recently decided another case involving eyewitness identification, Perry v. New Hampshire, (67) but this case did not involve revisiting the Manson test except to decide whether it should apply to suggestive procedures employed by non-state actors. (68)

2. Expert Testimony and Jury Instructions: Necessary Yet Insufficient Remedies

Introducing eyewitness-expert testimony is an important, yet controversial, method of combating the misidentification problem. (69) In theory, eyewitness-expert testimony informs the jury about potential pitfalls of eyewitness-identification procedures, both in general and when specifically applied to the case at hand. (70) Those who oppose the practice of admitting eyewitness-expert testimony, however, argue that it takes away from the jury's province to determine witness credibility and that vigorous cross examination accomplishes the same protective function as an expert witness. (71) While an important option, expert testimony is fraught with difficulties that could affect its usefulness as a means of combating the eyewitness-misidentification problem. (72) Currently, there is a three-way split in the federal courts of appeals regarding the admissibility of eyewitness-expert testimony. (73) State jurisdictions have split on this issue as well, with a minority completely barring the admissibility of eyewitness-expert testimony. (74) While the overall trend in both state and federal jurisdictions is to allow eyewitness-expert testimony, there is no national consensus on the issue. (75)

Likewise, some courts allow jury instructions on the topics of eyewitness misidentification and memory. (76) In the 1972 case of United States v. Telfaire,77 the United States Court of Appeals for the District of Columbia established that a cautionary instruction on the issue of eyewitness identification might be appropriate in certain cases. (78) Federal courts have since widely adopted the use of Telfaire instructions, or modified versions thereof, but these instructions are not usually mandatory. (79) The use of jury instructions varies greatly in state courts as well. (80) Like expert testimony, there is no national consensus regarding when cautionary instructions are appropriate or how they should be effectuated. (81)

3. Procedural Changes: Slowly Evolving

In 1999, the National Institute of Justice released an eyewitness-identification guide (NIJ Guide) for law-enforcement agencies. (82) The NIJ Guide includes recommendations for how to create composite images, conduct showups and lineups, and provide prelineup instructions to eyewitnesses. (83) The NIJ Guide's recommendations are designed to instruct law-enforcement personnel on how to conduct identifications in a way that reduces the likelihood of producing misidentifications. (84)

Some states have also taken steps to change their eyewitness-identification procedures to align with current social-science data. (85) In 2001, New Jersey became the first state to implement the reforms suggested in the NIJ Guide. (86) In 2005, Wisconsin's Attorney General suggested the use of blind-sequential lineups, and while this reform is not mandatory, hundreds of law-enforcement agencies within the state follow it. (87) In 2008, North Carolina implemented an eyewitness-identification-reform package that included mandating blind-sequential lineups, proper selection of nonsuspects in lineups, proper eyewitness instructions, and recording initial eyewitness-confidence statements. (88) Other states, including Georgia, Maryland, Vermont, and West Virginia have also initiated studies and implemented eyewitness-identification reforms. (89) Many of these reforms were motivated by DNA-exoneration cases in which eyewitness-identification evidence played a significant role in mistaken convictions. (90)

C. Federal Rule of Evidence 403

FRE 403 states that a court "may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." (91) The unfair-prejudice element of FRE 403 excludes classifications of evidence that are likely to irrationally persuade juries. (92) Unfair prejudice under FRE 403 can surface in a variety of ways; paradigmatic examples include evidence of flight from law-enforcement officials to prove consciousness of guilt, admission of gruesome photographs in murder trials, and evidence of mathematical probability of guilt. (93) FRE 403 grants trial judges broad discretion for admitting or excluding evidence. (94)

D. Judges as Gatekeepers Under the Federal Rules of Evidence

The Federal Rules of Evidence recognize that judges must function as gatekeepers in areas where jurors are likely to overweigh a piece of evidence or assign it an irrationally determinative weight. (95) For example, judges make substantial gatekeeping decisions with regard to character evidence under FRE 404(b). (96) FRE 404(b) provides, in part, that "[e]vidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character." (97) However, evidence of crimes, wrongs, and other acts may be admitted under FRE 404(b) to prove other, nonpropensity-based theories. (98) Even if evidence is highly probative, judges will exclude such evidence if its only purpose is to prove a person s propensity to act a certain way. (99)

Judges also have a significant gatekeeping role regarding admissibility of expert testimony. (100) FRE 702 provides the following:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case. (101)

The current text of this rule was enacted in 2000 in response to the Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. (102) and its progeny. (103) In Daubert, the Court held that trial judges must assess scientific expert testimony for reliability before admitting the testimony at trial. (104) This substantive gatekeeping function replaced the previously used "general acceptance" test, where trial judges admitted scientific expert testimony as long as it was based on scientific research or theories that were generally accepted within the expert's field of specialty. (105)

In Kumho Tire Co. v. Carmichael, (106) the Supreme Court extended the judicial gatekeeping responsibility established in Daubert to all types of expert testimony, not just scientific. (107) The current iteration of FRE 702 mirrors the holdings in Daubert and Kumho Tire by providing that trial judges must confront questions of admissibility for all types of expert testimony. (108) These questions require judges to consider whether proposed expert testimony is substantively reliable and helpful to the trier-of-fact, and then to exclude or admit the expert testimony based on their findings. (109)

III. Analysis

Recurring mistaken convictions based on erroneous eyewitness identifications expose an unacceptable flaw in the United States' criminal-justice system. (110) Mistaken convictions are a tremendous affront to the legitimacy of the criminal-judicial process and cause irreparable personal harm to the individuals who are wrongly convicted. (111) While a significant number of wrongly convicted individuals have been exonerated through DNA evidence, this number significantly understates the misidentification problem because DNA exonerations are only available to persons convicted of crimes involving physical evidence. (112) Because a great depth of scientific knowledge shows the weaknesses of memory, and because jurors commonly hold erroneous beliefs about the strength and reliability of memory, eyewitness-identification evidence is a prime target for judicial gatekeeping under FRE 403. (113) It is imperative that trial judges use their gatekeeping powers to help combat the misidentification problem. (114)

A. Current Remedies for Eyewitness Misidentification Are Inadequate

The Supreme Court's two-part Manson test for eyewitness-identification reliability is not an accurate means of assessing eyewitness-identification evidence. (115) The test provides for an assessment of whether evidence was obtained by use of unnecessary and suggestive procedures, but then allows the evidence to be admitted if, despite the suggestive way it was obtained, it is nonetheless "reliable." (116) In practice, situations where identifications are reliable despite suggestive procedures are exceedingly rare. (117) Additionally, the five factors enumerated in Manson for assessing reliability despite suggestiveness do not sufficiently represent applicable scientific research. (118) For example, while view and time elapsed after the initial encounter are important estimator variables, the Manson Court failed to consider other scientifically relevant variables such as stress, weapon focus, witness characteristics, perpetrator characteristics, and race bias. (119) Similarly, eyewitness certainty and reported degree of attention during the encounter do not necessarily correlate with enhanced accuracy. (120) The prior-description factor is particularly problematic because it inherently implies that the defendant is the perpetrator. (121)

While introducing eyewitness-expert testimony at trial is better than making no effort to combat the misidentification problem, it is not a sufficient solution. (122) Experts are costly and their efficacy may vary widely because juries are free to credit or discredit expert-witness testimony, just like the testimony of any other witness. (123) Similarly, while jury instructions are an important remedial measure, they are insufficient to counter the potentially determinative effect of a mistaken eyewitness who nonetheless appears credible. (124) Many jurisdictions have made important, procedural advancements in an effort to prevent law-enforcement officials from obtaining misidentifications. (125) These improvements are being implemented slowly, and courts should not wait for all jurisdictions to update identification procedures in order to fix the misidentification problem. (126) Judges, as the last line of defense against wrongful convictions, should exclude unreliable eyewitness-identification evidence, regardless of the particular jurisdiction's law-enforcement procedures. (127) Because nearly all states have adopted the FRE, either in whole or in part, federal courts are ideally situated to set a national example by using FRE 403 to exclude unreliable eyewitness-identification evidence. (128)

B. Applying FRE 403

FRE 403 exists as a stopgap for evidence that jeopardizes the fairness principles underlying the criminal-justice system. (129) Unreliably obtained eyewitness-identification evidence is substantially more prejudicial than probative in a criminal trial, yet juries routinely find it determinative despite its unreliability. (130) Based on various system and estimator variables identified by scientific researchers in the last thirty years, judges may now ascertain whether a particular identification poses a serious risk of unreliability. (131) Judges should use this wealth of scientific data to keep unreliable eyewitness-identification evidence out of the jury's decision-making process. (132)

Judges already possess substantial gatekeeping powers under the FRE. (133) We recognize that jurors are prone to using certain types of evidence in an unreasonably determinative manner, and we require judges to exclude such evidence before it reaches the jury. (134) For example, judges routinely exclude potentially probative character evidence in order to prevent juries from using the evidence in a manner unfair to the defendant. (135) Similarly, under FRE 702, judges must screen expert testimony to ensure that juries only hear reliable information. (136) Additionally, judges routinely use FRE 403 to exclude evidence, despite its relevance, in order to keep juries from making decisions on irrational bases. (137) Using FRE 403 to exclude unreliable eyewitness-identification evidence would thus be consistent with judges' current gatekeeping functions under the FRE. (138)

Suppression of unconstitutionally obtained evidence also illustrates how the United States' judicial system values certain civil liberties above the raw desire to convict. (139) Suppression of an illegal substance obtained by an unconstitutional search, for example, may be the death knell for the prosecution's case, but the exclusion serves the higher purpose of ensuring that citizens' reasonable expectations of privacy in their persons, places, or papers are protected. (140) Excluding unreliable eyewitness-identification evidence through FRE 403 may deny the prosecution relevant and potentially determinative evidence, but preventing the social and economic costs of mistaken convictions is worth this price. (141)

IV. Conclusion

Eyewitness misidentification is the leading cause of mistaken convictions in the United States, and this represents an unacceptable flaw in the criminal-justice system. Current attempts to combat the prejudicial effect of unreliable eyewitness-identification evidence are insufficient. Eyewitness-expert testimony, while important, is not widely admitted and is fraught with its own complications including high costs and the potential for jurors to discredit the expert. Jury instructions are also useful, but not sufficient, to combat the potentially determinative effects of eyewitness-identification evidence. Procedural changes are occurring in various jurisdictions throughout the United States, but many law enforcement agencies, including the Department of Justice, still do not require police to follow procedures that are scientifically proven to reduce risk of misidentification.

Federal judges should assess the means through which eyewitness identifications are obtained and use FRE 403 to balance whether the potential unreliability substantially outweighs the probative value of the evidence. In the last thirty years, scientists have produced an extensive body of research relating to eyewitness memory and identification processes. Many variables, both within and outside the control of the criminal-justice system, can and should be assessed in order to determine the reliability of eyewitness-identification evidence. Judges already have significant discretionary power under the FRE, in areas such as character evidence and admission of expert testimony. In recognition of the potential for jurors to become unreasonably swayed by this evidence despite substantial unreliability, the gatekeeping function of FRE 403 should be extended to encompass eyewitness-identification evidence.

(1.) Elizabeth F. Loftus, Eyewitness Testimony 19 (1979).

(2.) See Innocence Project, Reevaluating Lineups: Why Witnesses Make Mistakes and How to Reduce the Chance of a Misidentification 4 [hereinafter Reevaluating Lineups], available at (charting causes of wrongful convictions).

(3.) See Innocence Project, Innocence Project Case Profiles, (last visited Oct. 19, 2012) [hereinafter Case Profiles] (explaining and graphing 300 DNA exonerations).

(4.) See id.

(5.) See Innocence Project, Eyewitness Misidentification, Eyewitness-Misidentification.php (last visited Oct. 19, 2012) [hereinafter Eyewitness Misidentification] (explaining causes of mistaken convictions).

(6.) See Gary L. Wells & Deah S. Quinlivan, Suggestive Eyewitness Identification Procedures and the Supreme Court's Reliability Test in Light of Eyewitness Science: 30 Years Later, 33 Law & Hum. Behav. 1, 5 (2009) (discussing history of scientific studies on eyewitness identification).

(7.) See id. at 1 (discussing historical treatment of eyewitness identification by courts).

(8.) See Nathan R. Sobel, Eyewitness Identification: Legal and Practical Problems 329-40 (Dee Pridgen ed., 2d ed. 2011) (outlining varied use of eyewitness-expert testimony in state and federal courts). courts typically hesitate to allow expert testimony on eyewitness-identification issues because it takes away from the jury's province to determine credibility. See id. Some courts and scholars also posit that eyewitness-expert testimony is unnecessary because the average juror has some knowledge of memory reliability. See Richard S. Schmechel et al., Beyond the Ken? Testing Jurors' Understanding of Eyewitness Reliability Evidence, 46 Jurimetrics J. 177, 188 (2006) (noting common reasons for exclusion of eyewitness-expert testimony).

(9.) See David A. Sonenshein & Robin Nilon, Eyewitness Errors and Wrongful Convictions: Let's Give Science a Chance, 89 Or. L. Rev. 263, 289-90 (2010) (discussing general use of jury instructions in eyewitness-identification context); Reevaluating Lineups, supra note 2, at 22 (outlining procedural reforms adopted to modernize outdated identification procedures).

(10.) See Eyewitness Misidentification, supra note 5 ("Eyewitness misidentification is the single greatest cause of wrongful convictions nationwide...."); infra Part III.A (highlighting flaws and limitations of current eyewitness-misidentification remedies).

(11.) See infra Part III.B (arguing for further application of FRE 403 in eyewitness-identification context).

(12.) See Fed. R. Evid. 403 advisory committee's note; United States v. Myers, 550 F.2d 1036, 1049-51 (5th Cir. 1977) (establishing test for admissibility of circumstantial flight evidence); see also Brandon L. Garrett, Convicting the Innocent: Where Criminal Prosecutions Go Wrong 48 (2011) (discussing strength of eyewitness-identification evidence in criminal trials).

(13.) See Fed. R. Evid. 404, 702.

(14.) See infra Parts II-III (providing background and analysis on applying relevant social-science data to eyewitness-identification-evidence admissibility).

(15.) See infra Part II.A (providing overview of scientific research concerning reliability of eyewitness identifications).

(16.) See infra Part II.B (outlining current procedures for admitting eyewitness evidence, attempts to counter unreliability, and judicial gatekeeping).

(17.) See infra Part III (arguing for use of FRE 403 to exclude unreliable eyewitness-identification evidence).

(18.) See infra Part II.A (discussing thirty years of research identifying specific variables for assessing eyewitness-identification reliability).

(19.) See infra Part II.B.3 (outlining federal and state procedural reforms enacted to increase eyewitness- identification accuracy).

(20.) See infra Part II.B.2 (detailing use of eyewitness-expert testimony and cautionary instructions as remedies for misidentification problem).

(21.) See infra Part II.B.1 (explaining Supreme Court's reliability framework established in Manson v. Brathwaite, 432 U.S. 98 (1977)).

(22.) See Wells & Quinlivan, supra note 6, at 5 (discussing history of memory science and eyewitness-identification studies). cognitive and social psychologists in the 1970s conducted programmatic memory science research and published this research almost exclusively in psychological rather than legal journals. Id.

(23.) See id. (outlining history of memory-science research).

(24.) See id. (discussing history of memory-science and eyewitness-identification studies); see also Gary L. Wells, Applied Eyewitness--Testimony Research: System Variables and Estimator Variables, 36 J. Personality & Soc. Psychol. 1546, 1548 (1978) (defining two types of eyewitness-identification variables).

(25.) See Wells & Quinlivan, supra note 6, at 5 (discussing basic framework for eyewitness-identification studies).

(26.) See State v. Henderson, 27 A.3d 872, 877-78 (N.J. 2011).

(27.) See id. at 896-909 (outlining system and estimator variables identified by Special Master).

(28.) See id. at 895-903 (discussing system variables relevant to eyewitness-identification reliability).

(29.) See id. at 896-99 (discussing blind lineups, instructions, and lineup construction variables).

(30.) See Henderson, 27 A.3d at 896-97 (discussing blind-administration variable).

(31.) See id. at 896.

(32.) See State v. Henderson, 27 A.3d 872, 896-97 (N.J. 2011); Sarah M. Greathouse & Margaret Bull Kovera, Instruction Bias and Lineup Presentation Moderate the Effects of Administrator Knowledge on Eyewitness Identification, 33 Law & Hum. Behav. 70, 70 (2009) (explaining double-blind lineup method). When the administrator knows the suspect's identity, especially in combination with awareness of the suspect's placement in the lineup, the administrator may consciously or unconsciously indicate this information to the eyewitness and influence the eyewitness's decision. Henderson, 27 A.3d at 896-97.

(33.) See Steven E. Clark, A Re-examination of the Effects of Biased Lineup Instructions in Eyewitness Identification, 29 Law & Hum. Behav. 395, 418-20 (2005) (explaining accuracy correlated with freedom to abstain from picking out of lineup); Nancy Mehrkens Steblay, Social Influence in Eyewitness Recall: A Meta-Analytic Review of Lineup Instruction Effects, 21 Law & Hum. Behav. 283, 285-86, 294 (1997) (noting eyewitness accuracy rate rises when eyewitnesses not required to choose suspect). Proper pre-identification instructions inform the witness that the suspect may or may not be present in the lineup, and that the witness need not pick a suspect from the lineup. Henderson, 27 A.3d at 897. The importance of these pre-identification instructions is widely accepted and uncontroversial. Id.

(34.) See Henderson, 27 A.3d at 897-99 (discussing how construction of lineup affects eyewitness-identification accuracy); Roy S. Malpass et al., Lineup Construction and Lineup Fairness, in 2 The Handbook of Eyewitness Psychology: Memory for People 155, 155-56 (R. C. L. Lindsay et al. eds., 2007) (noting identifications more accurate when suspect looks similar to other members of lineup); Nat'l Inst. of Justice, U.S. Dep't of Justice, Eyewitness Evidence: A Guide for Law Enforcement 29 (1999) [hereinafter NIJ Guide], available at (suggesting lineups should contain minimum number of nonsuspects).

(35.) See Henderson, 27 A.3d at 897-99 (discussing lineup construction variable). When a suspect looks different from other members of the lineup, the eyewitness may choose the suspect simply because the suspect is visually distinctive. Malpass et al., supra note 34, at 156.

(36.) See Henderson, 27 A.3d at 899-901 (introducing feedback, confidence, and multiple viewings variables).

(37.) See id. at 899 (highlighting how postidentification feedback can reduce doubt and enhance eyewitness confidence).

(38.) See State v. Henderson, 27 A.3d 872, 899-900 (N.J. 2011). Studies show that eyewitnesses who receive postidentification feedback likely inflate their reports to reflect better witnessing conditions and stronger memory of the crime. Id. at 899. Encouraging behavior can actually cause an eyewitness to alter his or her memory of the crime and the identification. Gary L. Wells & Amy L. Bradfield, Distortions in Eyewitnesses' Recollections: Can the Postidentification-Feedback Effect Be Moderated?, 10 Psychol. Sci. 138, 140-43 (1999) [hereinafter Distortions] (discussing how encouraging behavior affects memory formation). Encouraging behavior, also called confirmatory feedback, consists of the lineup administrator saying something to the eyewitness after the eyewitness has made an identification, such as: "Oh, good. I noticed on your identification sheet that you identified the actual murder suspect." Id. at 140. Eyewitnesses that receive confirmatory feedback may subsequently remember being certain of the identification all along, even if the eyewitness actually hesitated during the identification process. Id. at 138; see Gary L. Wells & Amy L. Bradfield, "Good, You Identified the Suspect": Feedback to Eyewitnesses Distorts Their Reports of the Witnessing Experience, 83 J. Applied Psychol. 360, 374 (1998) (finding confirmatory feedback causes change in both eyewitness's confidence and recalled details of encounter).

(39.) See Henderson, 27 A.3d at 899-900 (examining how feedback affects eyewitness confidence and subsequent recollection). While some studies have shown that high levels of confidence may correlate with accuracy, confidence can also be falsely influenced by other factors including postidentification feedback. See Amy Bradfield Douglass & Nancy Steblay, Memory Distortion in Eyewitnesses: A Meta--Analysis of the PostIdentification Feedback Effect, 20 Applied Cognitive Psychol. 859, 864-65 (2006) (noting effects of confirmatory feedback on confidence); Gary L. Wells & Elizabeth A. Olson, Eyewitness Testimony, 54 Ann. Rev. Psychol. 277, 283-84 (2003) (explaining complexity of confidence and its relation to eyewitness certainty). But see Neil Brewer & Gary L. Wells, The Confidence-Accuracy Relationship in Eyewitness Identification: Effects of Lineup Instructions, Foil Similarity, and Target-Absent Base Rates, 12 J. Experimental Psychol.: Applied 11, 25 (2006) (finding confidence-accuracy correlation when confidence recorded at time of identification). The likelihood that a jury will accept an eyewitness's identification may be affected by the eyewitness's confidence, regardless of actual accuracy. See Neil Brewer & Anne Burke, Effects of Testimonial Inconsistencies and Eyewitness Confidence on Mock-Juror Judgments, 26 Law & Hum. Behav. 353, 354 (2002) (noting eyewitness confidence significant to jurors when determining guilt).

(40.) See Henderson, 27 A.3d at 900-02; Kenneth A. Deffenbacher et al., Mugshot Exposure Effects: Retroactive Interference, Mugshot Commitment, Source Confusion, and Unconscious Transference, 30 Law & Hum. Behav. 287, 299 (2006) (confirming mugshot exposure increases false identification rates at subsequent lineups). Research indicates that when shown multiple lineups or photo arrays, an eyewitness may select a suspect present in both viewings because the duplication creates a false sense of familiarity. Henderson, 27 A.3d at 900-02 (detailing how successive views of same person create reliability problems). One meta-analysis found that fifteen percent of eyewitnesses made incorrect identifications after viewing a lineup for the first time, while thirty-seven percent made incorrect identifications after being shown an innocent lineup-member in a mugshot prior to the lineup. Deffenbacher et al., supra, at 299.

(41.) See Henderson, 27 A.3d at 902-03 (explaining effects of facial composites and showups on eyewitness identification).

(42.) See id. at 902 (articulating facial composites often produce inaccurate portrayals of intended subject); Lisa E. Hasel & Gary L. Wells, Catching the Bad Guy: Morphing Composite Faces Helps, 31 Law & Hum. Behav. 193, 194 (2007) (explaining human tendency to remember faces holistically rather than by individual features). Some studies have found that in a subsequent lineup, an eyewitness more likely selects a person--actual perpetrator or not--who looks similar to the composite; however, this research is not well accepted. See Henderson, 27 A.3d at 902 (noting lack of quantity and quality of research on composites and identification); Gary L. Wells & Lisa E. Hasel, Facial Composite Production by Eyewitnesses, 16 Current Directions Psychol. Sci. 6, 6 (2007) (finding eyewitness likely to select person looking more like composite than actual perpetrator).

(43.) See Henderson, 27 A.3d at 902 (defining showups and explaining how employed by police).

(44.) See State v. Henderson, 27 A.3d 872, 902-03 (N.J. 2011). Showups, which are inherently suggestive because they involve only one suspect, can have heightened persuasiveness if the suspect is shown wearing clothing similar to the perpetrator. A. Daniel Yarmey et al., Accuracy of Eyewitness Identifications in Showups and Lineups, 20 Law & Hum. Behav. 459-73 (1996) (noting innocent person more likely identified in showup if wearing similar clothing to suspect). However, showups performed within minutes of the crime may be as accurate as a standard lineup. Henderson, 27 A.3d at 903; Yarmey et al., supra, at 459-64.

(45.) See Henderson, 27 A.3d at 904-07 (discussing estimator variables beyond justice system's control).

(46.) See id. at 904-06 (examining stress, weapon focus, duration, and lighting and distance variables).

(47.) See id. at 872, 904 (discussing stress estimator variable); Kenneth A. Deffenbacher et al., A Meta-- Analytic Review of the Effects of High Stress on Eyewitness Memory, 28 Law & Hum. Behav. 687, 699 (2004) (finding high stress negatively impacts accurate identification). These findings counter the popular notion that high levels of stress and threatening situations cause people to form more accurate memories because the encounter is so memorable. See Henderson, 27 A.3d at 904.

(48.) See Henderson, 27 A.3d at 905; see also Nancy Mehrkens Steblay, A Meta-Analytic Review of the Weapon Focus Effect, 16 Law & Hum. Behav. 413, 415-17 (1992) (finding 9.8% decrease in accuracy when weapon present during encounter). Studies show that when a weapon is present, the eyewitness becomes distracted by the weapon and directs less attention at the perpetrator. Henderson, 27 A.3d at 904-05. These studies are contrary to the popular notion that eyewitness memory is strengthened by high stress and feelings of danger. See id.; Schmechel et al., supra note 8, at 197 (finding seventy percent of potential jurors believed weapon presence had no effect or would increase memory accuracy).

(49.) See Henderson, 27 A.3d at 905 (discussing duration variable); Colin G. Tredoux et al., Eyewitness Identification, in 1 Encyclopedia of Applied Psychology 875, 877 (Charles D. Spielberger ed., 2004) (finding correlation between longer viewing time and more accurate memory). It is important to note, however, that studies also show that eyewitnesses routinely overestimate the duration of the encounter when recalling it later, most likely due to stress. See Elizabeth F. Loftus et al., Time Went By So Slowly: Overestimation of Event Duration by Males and Females, 1 Applied Cognitive Psychol. 3, 10 (1987) (finding people overestimate time when stressed).

(50.) See State v. Henderson, 27 A.3d 872, 906 (N.J. 2011) (describing influence of distance and lighting on eyewitness perception); R. C. L. Lindsay et al., How Variations in Distance Affect Eyewitness Reports and Identification Accuracy, 32 Law & Hum. Behav. 526, 533-34 (2008) (finding identification inaccuracy correlating with longer distance from perpetrator).

(51.) See Henderson, 27 A.3d at 906-08.

(52.) See id. at 906 (displaying how various eyewitness characteristics affect eyewitnesses' recall abilities). While the research on intoxication is undisputed, other studies concerning the age of the eyewitness have produced more nuanced results. Id. For example, research shows that eyewitnesses under the age of fourteen and over the age of sixty-eight are less likely to make accurate identifications than those aged in between; however, research also suggests that these findings could be based solely on the relative age of eyewitness to perpetrator. See Joanna D. Pozzulo & R. C. L. Lindsay, Identification Accuracy of Children Versus Adults: A Meta-Analysis, 22 Law & Hum. Behav. 549, 563-65 (1998) (finding children between ages nine and thirteen more likely to make incorrect identifications); see also James C. Bartlett & Amina Memon, Eyewitness Memory in Young and Older Adults, in 2 The Handbook of Eyewitness Psychology: Memory for People 309, 321-22 (R. C. L. Lindsay et al. eds., 2007) (recognizing accuracy may also depend on relativity of young witness's age to perpetrator's age).

(53.) See Henderson, 27 A.3d at 907 (outlining characteristics of perpetrator variable). Disguises do not have to be elaborate to reduce accuracy. See Brian L. Cutler et al., Improving the Reliability of Eyewitness Identification: Putting Context into Context, 72 J. Applied Psychol. 629, 635 (1987) (finding perpetrator wearing hat reduces accuracy when presented in lineup without hat).

(54.) See Henderson, 27 A.3d at 907 (examining memory decay); Kenneth A. Deffenbacher et al., Forgetting the Once-Seen Face: Estimating the Strength of an Eyewitness's Memory Representation, 14 J. Experimental Psychol.: Applied 139, 142 (2008) (concluding memory decays with time). While research does not point to a specific time period within which identifications are significantly more accurate, a direct correlation does exist between increased time and less accurate memories. See Henderson, 27 A.3d at 907.

(55.) See Henderson, 27 A.3d at 907; Christian A. Meissner & John C. Brigham, Thirty Years of Investigating the Own-Race Bias in Memory for Faces: A Meta-Analytic Review, 7 Psychol. Pub. Pol'y & L. 3, 21 (2001) (finding own-race bias effect makes cross-racial identifications less accurate). The Innocence Project found that in fifty-three percent of the first 179 misidentification cases overturned by DNA evidence, the eyewitness and perpetrator were of different races. Reevaluating Lineups, supra note 2, at 3, 8. The Innocence Project found that in cross-racial misidentification cases, ninety-nine percent of the defendants were either African-American or Latino, while just one percent were Caucasian. Id. This correlates with the result that people of color are far more likely to be wrongly convicted due to misidentification than Caucasians. Id. at 8. Another study concluded "a Black innocent suspect has a 56% greater chance of being misidentified by a White eyewitness than by a Black eyewitness." Gary L. Wells & Elizabeth A. Olson, The Other-Race Effect in Eyewitness Identification: What Do We Do About It?, 7 Psychol. Pub. Pol'y & L. 230, 231 (2001).

(56.) See State v. Henderson, 27 A.3d 872, 907-08 (N.J. 2011) (discussing effects of private actors on eyewitness perception and memory); Elin M. Skagerberg, Co-Witness Feedback in Line-Ups, 21 Applied Cognitive Psychol. 489, 494-95 (2007) (finding feedback and suggestiveness from others affects identification and may create false memories). Studies show that cowitnesses can influence each other's identifications and memories, especially if the cowitnesses were previously acquainted. Henderson, 27 A.3d at 908-09. While social-science research shows that nonstate actors can affect eyewitness-identification accuracy just as law-enforcement personnel can, the Supreme Court recently held that these two categories of interference are legally distinct. See Perry v. New Hampshire, 132 S. Ct. 716, 730 (2012). In Perry, the Court held that eyewitness identifications potentially tainted by interference from nonstate actors are not subject to the same due-process requirements as identifications potentially tainted by the actions of state actors. Id.

(57.) See Manson v. Brathwaite, 432 U.S. 98, 113-14 (1977) (discussing due-process implications of eyewitness misidentifications). Even in 1977, before the proliferation of scientific research on eyewitness memory, the Manson Court recognized that eyewitness memories are not always accurate. See id. at 112. The Court specifically noted that "[t]he witness' recollection of the stranger can be distorted easily by the circumstances or by later actions of the police." Id. The Court implied that this evidence of distorted recollections, if admissible at trial against the defendant, could result in a violation of the standard of fairness required by the Due Process Clause of the Fourteenth Amendment. See id. at 113. Decades after the Supreme Court decided Manson, the Innocence Project identified eyewitness misidentification as the leading cause of mistaken convictions for the first 239 persons exonerated by exculpatory DNA evidence. See Reevaluating Lineups, supra note 2, at 3-4. Seventy-five percent, or 179 individuals, out of the first 239 DNA-exoneration cases involved eyewitness misidentification. Id. The New Jersey Supreme Court noted in Henderson that "it is now widely known that eyewitness misidentification is the leading cause of wrongful convictions across the country." Henderson, 27 A.3d at 878. New Jersey is among a growing number of states that have recently changed their standards in light of the extensive body of scientific findings. Id.; see Commonwealth v. Johnson, 650 N.E.2d 1257, 1262 (Mass. 1995) (holding Manson reliability test insufficient protection of due-process rights under Massachusetts's Constitution); People v. Adams, 423 N.E.2d 379, 383 (N.Y. 1981) (requiring per se exclusion of identification obtained by suggestive lineup); see also Reevaluating Lineups, supra note 2, at 23 (showing timeline of significant state and federal eyewitness-identification reforms between 1999 and 2009).

(58.) See Reevaluating Lineups, supra note 2, at 22-24; Sonenshein & Nilon, supra note 9, at 299-300 (discussing treatment of eyewitness-expert testimony among state and federal courts).

(59.) See Margery Malkin Koosed, Reforming Eyewitness Identification Law and Practices to Protect the Innocent, 42 Creighton L. Rev. 595, 620 (2009) (noting use of jury instructions in federal and state courts varying by jurisdiction); Sonenshein & Nilon, supra note 9, at 289-90 (highlighting Georgia's and Connecticut's use of strengthened cautionary instructions); see also Tanja Rapus Benton et al., Has Eyewitness Testimony Research Penetrated the American Legal System? A Synthesis of Case History, Juror Knowledge, and Expert Testimony, in 2 The Handbook of Eyewitness Psychology: Memory for People 453, 492-93 (R. C. L. Lindsay et al. eds., 2007) (evaluating efficacy of cautionary instructions).

(60.) See Manson, 432 u.S. at 114 (establishing reliability test for eyewitness-identification evidence); Wells & Quinlivan, supra note 6, at 5 (discussing legal framework for eyewitness-evidence admissibility).

(61.) 432 u.S. 98 (1977).

(62.) See id. at 114; Wells & Quinlivan, supra note 6, at 1 (analyzing history of judicial treatment of eyewitness identifications).

(63.) See Manson, 432 u.S. at 105-06, 114 (outlining test and affirming reliability as "linchpin" of admissibility). In Manson, the Court addressed the issue of whether the Fourteenth Amendment Due Process Clause requires eyewitness-identification evidence obtained in an unnecessary and suggestive manner to be excluded from a criminal trial. Id. at 99. The Court relied mainly on two previous decisions, Stovall v. Denno, 388 U.S. 293 (1967), and Neil v. Biggers, 409 U.S. 188 (1972), to affirm the rule that evidence obtained in an unnecessary and suggestive manner is admissible as long as factors exist to suggest overall reliability of the evidence. See Manson, 432 U.S. at 114. The Manson holding clarified a dispute among the circuits about how to interpret Stovall and Biggers. See id. at 110. Some circuits interpreted Stovall and Biggers to require per se exclusion of eyewitness evidence obtained in an unnecessary and suggestive manner, while other circuits relied on the totality of the circumstances to determine overall reliability. Id. Manson rejected the per se rule in favor of the more lenient, ad hoc, totality of the circumstances approach. See id. at 114.

(64.) See Manson, 432 U.S. at 113 (discussing Fourteenth Amendment due-process standard).

(65.) See id. at 114 (establishing factors for determining reliability).

(66.) See Wells & Quinlivan, supra note 6, at 5 (discussing history and treatment of eyewitness-identification science). A Special Master for the New Jersey Supreme Court recently found that only four articles were published in the 1970s with the words "eyewitness" and "identify" in their abstracts, whereas more than 2000 studies were conducted on these topics between 1981 and 2011. See State v. Henderson, 27 A.3d 872, 892 (N.J. 2011) (discussing changing scope of scientific research on memory and eyewitness identification in past thirty years). Although there was not a prolific amount of relevant social-science research available in 1977, the Supreme Court did appear to have prior knowledge of the potential unreliability of eyewitness-identification evidence. See United States v. Wade, 388 U.S. 218, 228 (1967) ("The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification."). The Wade Court held that the Sixth Amendment requires a right to presence of counsel during a formal identification procedure such as a lineup. See id. at 236-37.

(67.) 132 S. Ct. 716 (2012).

(68.) See id. at 726. In Perry, the Court framed the issue as "whether the Due Process Clause requires a trial judge to conduct a preliminary assessment of the reliability of an eyewitness identification made under suggestive circumstances not arranged by the police." Id. at 723. Because Manson was decided on due-process grounds, the Court's focus in Perry was similarly confined to deciding whether admitting the eyewitness evidence without pretrial judicial review would render the trial fundamentally unfair. See id. at 728-29. The Court held that "[t]he fallibility of eyewitness evidence does not, without the taint of improper state conduct, warrant a due process rule requiring a trial court to screen such evidence for reliability before allowing the jury to assess its creditworthiness." Id. at 728.

(69.) See Sobel, supra note 8, at 329; Sonenshein & Nilon, supra note 9, at 294-96 (opining on use of eyewitness-expert testimony in federal courts); see also Steven I. Friedland, On Common Sense and the Evaluation of Witness Credibility, 40 Case W. Res. L. Rev. 165, 165-66 (1990) (commenting upon jury's ability to find expert witness credible).

(70.) See Sobel, supra note 8, at 329. One recent study identified specific areas where an average juror lacks knowledge, and thus where expert testimony may be especially helpful. See Sarah L. Desmarais & J. Don Read, After 30 Years, What Do We Know About What Jurors Know? A Meta-Analytic Review of Lay Knowledge Regarding Eyewitness Factors, 35 Law & Hum. Behav. 200, 208-09 (2011). The identified areas of deficit in average juror knowledge included race bias, lineup construction, confidence, exposure time, and weapon focus. See id. As required by FRE 702, admissibility of eyewitness-expert testimony implies that the average juror does not already know about the potential pitfalls of eyewitness-identification procedures. See Schmechel et al., supra note 8, at 191. Scientific studies show that some courts overestimate the average person's knowledge and understanding of memory reliability. See id. at 191-92. One study found that seventy-four percent of judges considered it common sense that an eyewitness would be more likely to pick a suspect from a lineup if he or she had previously seen a mugshot picture of the same suspect, while only thirteen percent of memory researchers believed that this phenomenon was a matter of common sense. Id. at 192.

(71.) See Sobel, supra note 8, at 330-33 (noting popular criticisms of eyewitness-expert testimony). Some argue that jurors will be unduly influenced by the opinions of an expert, resulting in jurors impermissibly determining witness credibility based on the expert's views, not their own. See Peter Petraro, The Admissibility of Expert Psychological Testimony on the Unreliability of Cross-Racial Identifications, 47 No. 5 Crim. L. Bull., pt. III.A (2011). Cross-examination could potentially expose weaknesses in the proffered accuracy of an eyewitness's memory. See id. at pt. I. But see Watkins v. Sowders, 449 U.S. 341, 356 (1981) (Brennan, J., dissenting) ("[C]ross-examination is both an ineffective and a wrong tool for purging inadmissible identification evidence from the jurors' minds."). Justice Brennan argued that cross-examination is ineffective in this area because scientific research suggests that jurors are irrationally impacted by eyewitness-identification evidence. See Watkins, 449 U.S. at 356-57 (Brennan, J., dissenting). Thus, according to Justice Brennan, jurors are likely to overweigh eyewitness-identification evidence even despite skillful cross-examination. See id. at 357 (Brennan, J., dissenting); see also George Vallas, A Survey of Federal and State Standards for the Admission of Expert Testimony on the Reliability of Eyewitnesses, 39 Am. J. Crim. L. 97, 130-31 (2011) ("Research does suggest that cross-examination that reveals inconsistencies may make jurors more skeptical of eyewitness testimony. However, consistency is not a reliable indicator of the accuracy of an identification.").

(72.) Cf. Dan Poynter, The Expert Witness Handbook: Tips and Techniques for the Litigation Consultant 171 (3d ed. 2005) (explaining average costs of expert witnesses). Expert witnesses can cost from $800 to $5000 per day, depending on their qualifications, specialty, and demand for expert testimony in their field. See id.

(73.) See, e.g., United States v. Brownlee, 454 F.3d 131, 141 (3d Cir. 2006) (holding eyewitness-expert testimony admissible under FRE 702); United States v. Smith, 148 F. App'x 867, 872 (11th Cir. 2005) (holding eyewitness-expert testimony not useful to jury); United States v. Rincon, 28 F.3d 921, 926 (9th Cir. 1994) (holding case-by-case approach appropriate for admission of eyewitness-expert testimony); see also Sonenshein & Nilon, supra note 9, at 294-99 (discussing use of eyewitness-expert testimony in federal courts). The three approaches are: (1) a complete bar to expert testimony, held by the Eleventh Circuit only; (2) a case-by-case approach, held by the First, Eighth, Ninth, and District of Columbia Circuits; and (3) a general presumption of admissibility, held by the Third and Sixth Circuits. See Sonenshein & Nilon, supra note 9, at 294-99.

(74.) See Sonenshein & Nilon, supra note 9, at 299-300 (discussing use of eyewitness-expert testimony in state courts). While most state courts have held that eyewitness-expert testimony should be admitted on a case-by-case basis, the Pennsylvania Supreme Court has barred the use of such testimony altogether. Id. In contrast, Arizona, California, New York, and Utah all consider rejection of eyewitness-expert testimony to be an abuse of discretion by the trial judge. Id. at 299.

(75.) See Schmechel et al., supra note 8, at 185-88 (explaining eyewitness-expert-testimony admissibility in state courts); Sonenshein & Nilon, supra note 9, at 294-97 (discussing eyewitness-expert-testimony admissibility in federal courts). As of 2007, forty-six states had case law bearing on the issue of eyewitness-expert-testimony admissibility. See Benton et al., supra note 59, at 467. Thirty-five percent of these cases either suggested or established per se inadmissibility rules, while sixty-six percent adopted discretionary rules allowing admissibility in certain circumstances. Id.

(76.) See Sobel, supra note 8, at 341-48 (outlining use of eyewitness-identification jury instructions in federal and state courts); Koosed, supra note 59, at 620 (discussing efficacy of jury instructions tailored to needs of particular case).

(77.) 469 F.2d 552 (D.C. Cir. 1972).

(78.) See id. at 558-59 (adopting "model special instructions on identification"). This model instruction was meant to bring jurors' attention to certain factors that could affect the accuracy of an eyewitness's identification. See id. These factors include the eyewitness's opportunity to observe the offender at the time of the offense, whether the identification was the product of the eyewitness's own recollection, and the credibility of the identification witness. Id.

(79.) See Sobel, supra note 8, at 341-48. The Fourth and Seventh Circuits strongly recommend Telfaire instructions in cases where eyewitness identification plays a key role. Id. at 341. The First, Second, Sixth, Eighth, and Ninth Circuits have likewise recommended using instructions in cases where eyewitness identification plays a major role in the case, but these circuits give trial judges discretion in deciding when the instruction is appropriate. Id. The Tenth Circuit applies a so-called "flexible" approach, whereby appellate courts review denied requests for eyewitness-identification jury instructions by focusing on the individual facts of each case. Id. at 341-42.

(80.) See id. at 341-48 (discussing use of Telfaire instructions in state courts). Massachusetts requires instructions regarding the possibility of mistaken identification when requested. Id. at 342. Connecticut and Oregon have essentially adopted Telfaire instructions, while Arkansas, Nebraska, and Washington have specifically rejected such instructions. See id. at 342-46.

(81.) See id. at 341 ("There is no constitutional right or other requirement that judges specifically instruct juries on the inherent fallibility of eyewitness identification."); see also Brandon L. Garrett, Eyewitnesses and Exclusion, 65 Vand. L. Rev. 451, 493-94 (2012) (noting need for further research on efficacy of eyewitnessidentification jury instructions).

(82.) See generally NIJ Guide, supra note 34. The NIJ Guide did not establish any legal mandates; it merely provided suggestions for how to conduct eyewitness identifications in a manner most consistent with the current scientific research at the time. See id. at 2.

(83.) See id. at 18-20, 27-32. For example, the NIJ Guide instructs law-enforcement personnel to avoid showing photographs to an eyewitness immediately before the eyewitness attempts to facilitate the creation of a composite image, and that the composite-creation procedure should be conducted separately with each individual witness. Id. Further, the NIJ Guide instructs proper lineup administration by suggesting that each lineup contain only one suspect and a minimum of four "fillers" (nonsuspects) who look similar to the suspect; and that the fillers should not be reused when showing a new suspect to the same eyewitness. Id. at 30. The NIJ Guide also suggests that lineup administrators should instruct the eyewitness, prior to the lineup, that the perpetrator may or may not be present in the lineup, and that "it is just as important to clear innocent persons from suspicion as to identify guilty parties." Id. at 32.

(84.) See id. at 3-4. The NIJ Guide resulted from a National Institute of Justice Research Report that identified eyewitness misidentifications as a significant cause of wrongful convictions. Id. at 3. The NIJ Guide purports to incorporate social-science data into its recommendations in order to facilitate increased accuracy of eyewitness identifications. Id. at 2. Consistent with this goal, a statement of policy accompanies each recommendation; for example, the NIJ Guide's suggested lineup-procedures policy explanation states that "[t]he investigator shall compose the lineup in such a manner that the suspect does not unduly stand out." Id. at 29; see Malpass et al., supra note 34, at 156 (noting identification more accurate when suspect looks similar to other members of lineup).

(85.) See Reevaluating Lineups, supra note 2, at 22 (discussing state-police-practice reforms).

(86.) See id.

(87.) See id. A sequential lineup presents each lineup member to the eyewitness one at a time. Id. at 21. Alternatively, a simultaneous lineup presents all lineup members at the same time. Id. Sequential lineups prohibit the eyewitness from making a relative judgment--choosing a member of the lineup because he or she most resembles the perpetrator compared to the other members of the lineup--and encourages judgment on comparisons between each lineup member and the witness's actual memory. Id. Research shows that when lineup administrators combine sequential presentation with blind administration, the likelihood of misidentification is substantially reduced. Id.

(88.) See id. at 22.

(89.) See Reevaluating Lineups, supra note 2, at 22-24. The police-practice reforms in Georgia, Maryland, Vermont, and West Virginia have included creating task forces to study and identify best practices for identification procedures, mandating written policies for identification procedures, adopting procedures complying with the NIJ Guide, and mandating training programs. Id. at 23.

(90.) See id. at 22. Despite procedural reforms in many states, law-enforcement personnel in some jurisdictions continue to lack written guidelines for how to conduct eyewitness identifications. See Garrett, supra note 12, at 53 (noting many police departments have not significantly updated identification procedures since 1980s).

(91.) Fed. R. Evid. 403; see, e.g., Chism v. CNH America LLC, 638 F.3d 637, 641-42 (8th Cir. 2011) (holding no abuse of discretion where judge barred four unrelated accidents involving manufacturer's products); Fox v. Hayes, 600 F.3d 819, 839 (7th Cir. 2010) (holding no abuse of discretion where judge barred statement regarding suspect's history of lying); United States v. Rosen, 444 F. Supp. 2d 664, 669-70 (E.D. Va. 2006) (holding no abuse of discretion where judge barred publicly available document in espionage prosecution); United States v. Jobin, 327 F. Supp. 2d 310, 314-15 (D. Vt. 2004) (holding no abuse of discretion where trial judge barred agent's testimony that drug smugglers never used unwitting couriers).

(92.) See Fed R. Evid. 403 advisory committee's note (defining unfair prejudice as "an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one"). Jurors may use eyewitness-identification evidence to make a decision on an improper basis because they are likely to believe an eyewitness even if the eyewitness mistakenly identifies a suspect. See Garrett, supra note 12, at 48 (noting strength of eyewitness-identification evidence in jurors' decision-making processes).

(93.) See United States v. Myers, 550 F.2d 1036, 1049-50 (5th Cir. 1977) (establishing admissibility test for circumstantial flight evidence leading to permissive inferences of consciousness of guilt); State v. Bocharski, 22 P.3d 43, 48-51 (Ariz. 2001) (discussing admissibility of gruesome photographs in murder trial); People v. Collins, 438 P.2d 33, 38 (Cal. 1968) (discussing admissibility of expert testimony on mathematical probability of defendants' guilt).

(94.) See 22A C.J.S. Criminal Law [section] 975 (2011) (discussing judicial discretion for admitting orrejecting prejudicial evidence).

(95.) See Fed. R. Evid. 403, 404(b), 702. The Supreme Court has specifically referred to the judicial gatekeeping function when discussing admissibility of expert testimony under FRE 702. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999) (noting importance of judicial gatekeeping function to "ensure the reliability and relevancy of expert testimony"); Gen. Electric Co. v. Joiner, 522 U.S. 136, 148-50 (1997) (Breyer, J., concurring) (noting importance of judicial gatekeeping for expert testimony in toxic-tort cases); Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993) (recognizing judicial gatekeeping facilitates "particularized resolution of legal disputes"). Under FRE 404(b), judges act as gatekeepers by excluding evidence of other acts, even if highly probative, if the evidence is offered to prove a forbidden chain of inferences--that a person who acted a certain way in the past has a propensity to act that way, and is therefore more likely to have acted that way on the occasion in question. Fed. R. Evid. 404(b) & advisory committee's note. When evidence of past acts is offered on a nonpropensity theory under FRE 404(b), judges assume a more nuanced, implied gatekeeping role when weighing the risk that jurors will use the proposed evidence for propensity reasoning even if instructed not to. See id. at advisory committee's note. FRE 403 exists as a general overlay, providing judges with an implied gatekeeping ability to exclude any piece of relevant evidence if its probative value substantially outweighs the risk of unfair prejudice. See Fed. R. Evid. 403 & advisory committee's note.

(96.) See Fed. R. Evid. 404(b) & advisory committee's note (noting FRE 404(b) among most cited rules of evidence).

(97.) Fed. R. Evid. 404(b)(1).

(98.) See Fed. R. Evid. 404(b)(2).

(99.) See Fed. R. Evid. 404 advisory committee's note. The character analysis is still subject to the balancing test of FRE 403, however, even if the evidence is presented for a purpose other than to prove propensity. Id.

(100.) See Fed. R. Evid. 702 & advisory committee's note.

(101.) Fed. R. Evid. 702.

(102.) 509 U.S. 579 (1993).

(103.) See Fed. R. Evid. 702 advisory committee's note.

(104.) See Daubert, 509 U.S. at 589-90 (discussing necessity for reliability assessment); see also Julie A. Seaman, Triangulating Testimonial Hearsay: The Constitutional Boundaries of Expert Opinion Testimony, 96 Geo. L.J. 827, 875 (2008) (discussing jury distrust inherent in Daubert decision). Distrust of juries exists for many reasons: Jurors may not properly weigh or fully understand certain types of evidence; jurors may develop irrational biases in favor of certain types of litigants; jurors may decide cases on emotional rather than reasonable grounds; and jurors may have a general disrespect for the judicial system based on their own personal experiences. See Seaman, supra, at 875-76.

(105.) See Daubert, 509 U.S. at 588-89 (explaining why FRE 702 superseded general-acceptance rule). One year after the Daubert decision, the Federal Judicial Institute released the Reference Manual on Scientific Evidence for the purpose of assisting judges and other legal professionals in assessing the reliability of scientific testimony. See Fed. Judicial Ctr., Reference Manual on Scientific Evidence, at v (2d ed. 2000), available at The Federal Judicial Center released an updated second edition of the Reference Manual in 2000, incorporating relevant case law on scientific testimony between 1994 and 2000. Id. The Reference Manual includes a history of admissibility of expert testimony, a basic overview of statistics and scientific methods, and detailed sections on specific areas of specialty including DNA evidence, epidemiology, toxicology, and medical testimony. Id. at iii.

(106.) 526 U.S. 137 (1999).

(107.) See id. at 149 (holding judicial gatekeeping function applicable to nonscientific expert testimony).

(108.) See Fed. R. Evid. 702 & advisory committee's note.

(109.) See Fed. R. Evid. 702 advisory committee's note. In a related manner, judges act as evidentiary gatekeepers of evidence and statements obtained in violation of the Constitution, in recognition that civil liberties must sometimes be prioritized over the desire to convict. See, e.g., U.S. Const. amend. IV; Miranda v. Arizona, 384 U.S. 436, 498-99 (1966) (requiring exclusion of incriminating statements made without procedural safeguards to protect Fifth Amendment rights); Weeks v. United States, 232 U.S. 383, 393 (1914) (establishing exclusionary rule for evidence obtained in violation of Fourth Amendment in federal prosecutions), overruled by Mapp v. Ohio, 367 U.S. 643 (1961).

(110.) See Case Profiles, supra note 3 (outlining 300 DNA exonerations with average 13.6 years served before exoneration); see also Garrett, supra note 12, at 6 ("DNA exonerations have changed the face of criminal justice in the United States by revealing that wrongful convictions do occur and, in the process, altering how judges, lawyers, legislators, the public, and scholars perceive the system's accuracy.... Public distrust of the criminal justice system has increased....").

(111.) See Garrett, supra note 12, at 234-38 (discussing life after exoneration). Many services available to convicts who are paroled, such as job training, counseling, and housing placement, are not available to innocent convicts who are exonerated. Id. at 234. Only sixty percent of DNA exonerees have received civil compensation for their years of imprisonment. Id. at 235. Mistaken convictions undermine the criminal-justice system as a whole because while an innocent person suffers for a crime he or she did not commit, the actual perpetrator continues to threaten society by remaining free. See id. at 5.

(112.) See Reevaluating Lineups, supra note 2, at 3 ("DNA exonerations don't just show a piece of the problem--they are a microcosm of the criminal justice system."). Experts have estimated that only five to ten percent of all criminal cases involve physical evidence that can be subjected to DNA testing. Id. Out of the first 190 DNA exonerations where the defendants' convictions were based on eyewitness misidentifications, 84% of the exonerees were convicted of rape, whereas only 0.8% of all felony defendants are convicted of rape. Garrett, supra note 12, at 5, 51, 81 n.142. "Other crimes that many more people are convicted of each year, such as robbery, also commonly involve eyewitness identifications, but usually do not have evidence that can be tested using DNA. We simply do not know how common eyewitness misidentifications are for those other types of crimes." Id. at 81.

(113.) See Schmechel et al., supra note 8, at 195-96 (discussing gap between scientific knowledge of memory fallibility and common juror understanding). One recent study found that only thirty-three percent of potential jurors, when surveyed, correctly indicated that an eyewitness's memory of a perpetrator's face is generally less reliable when a weapon is present during the encounter with the perpetrator. Id. at 197. This phenomenon, called weapon focus, is largely uncontroverted in the scientific community. See id. at 196; Steblay, supra note 48, at 413-17 (discussing weapon focus effect). In contrast with the scientific community, thirty-seven percent of jurors indicated that the presence of a weapon would make an eyewitness's memory more reliable, and thirty-three percent indicated that it would have no effect. Schmechel et al., supra note 8, at 197.

(114.) See infra Part III.B (arguing for expanded judicial role in determining admissibility of eyewitness identifications under FRE 403). FRE 403, like other judicial gatekeeping functions established by the Federal Rules of Evidence, exists precisely for situations where judges function as a final barrier to prohibit juries from considering evidence that is unfairly detrimental to the defendant. See Fed. R. Evid. 403 advisory committee's note ("'Unfair prejudice' within its context means an undue tendency to suggest decision on an improper basis. ..."); see also Fed. R. Evid. 404(b) (requiring exclusion of character evidence to prove propensity); Fed. R. Evid. 702 (requiring judicial gatekeeping of expert testimony in order to ensure reliability).

(115.) See Wells & Quinlivan, supra note 6, at 9 (discussing application of scientific research to Manson criteria). Most importantly, the Manson factors for assessing reliability--view, attention, certainty, time, and description--are not independent from the suggestiveness of the identification procedures they are designed to assess. Id. Thus, a suggestive procedure could actually cause a witness to self-report information in a manner that erroneously satisfies one or more of the reliability factors. See id. For example, research shows that eyewitnesses given confirmatory remarks after identifying a suspect later recall that they had a better opportunity to view the perpetrator during the initial encounter than those eyewitnesses not given confirmatory remarks. Id. at 10. Ultimately, suggestive-confirmatory remarks could cause an eyewitness to erroneously satisfy the view factor in the reliability criteria; the result would be erroneous because the eyewitness would not have self-reported good viewing conditions absent the suggestive-confirmatory remarks. See id.

(116.) See Manson v. Brathwaite, 432 U.S. 98, 114 (1977). The "reliability" piece of the Manson test undercuts its efficacy because, for example, "[e]ven the aggressive use of suggestion by the police... could be excused if the judge found the identification 'reliable' because the witnesses seemed certain by the time of the trial." Garrett, supra note 12, at 53-54. This ineffectiveness results in an insignificant deterrence effect for law-enforcement personnel who may engage in suggestive-identification procedures. See Commonwealth v. Johnson, 650 N.E.2d 1257, 1263 (Mass. 1995) (explaining rationale for rejecting Manson test). Even if police use a suggestive procedure such as a showup, a motion judge under the Manson test can permit the evidence as long as he or she finds some other (not necessarily independent) indicia of reliability. Id. (concluding Manson test provides that "absent extremely aggravating circumstances, suggestive [procedures] will not result in suppression").

(117.) See Wells & Quinlivan, supra note 6, at 9 (discussing research relating to Manson criteria). Wells & Quinlivan provide the following example:
   Imagine, for instance, that a victim-witness had been abducted and
   held for 3 months during which the culprit's face was never covered
   and there was full light (repeated opportunity to view), the victim
   studied the face repeatedly (repeated attention), the victim
   described the face in great detail, including unique features
   (excellent description), and the witness identified the suspect
   with total certainty within minutes after escaping. Surely, in this
   case we would not care if the identification procedure had multiple
   characteristics of a highly suggestive procedure (e.g., a show-up,
   failure to warn the witness that this might not be the culprit, and
   so on).

Id. In comparison, the factual scenario in Manson is probably more representative of the variables at play in a typical preidentification encounter: The eyewitness viewed the perpetrator for five to seven minutes, during which time the eyewitness was also conducting a controlled drug buy, and then identified the suspect two days later after being shown a single photograph for identification. See Manson, 432 U.S. at 99-101. The eyewitness described the perpetrator, prior to making the identification, as "a colored man, approximately five feet eleven inches tall, dark complexion, black hair, short Afro style, and having high cheekbones, and of heavy build." Id. at 101.

(118.) See Wells & Quinlivan, supra note 6, at 9-14 (discussing Manson factors in light of current research). The Manson reliability factors--view, attention, certainty, time, and description--are only a small sample of the nearly twenty factors identified by current social-science researchers that affect eyewitness-identification accuracy. See supra Part II.A (summarizing seventeen factors currently considered important for identification reliability). Within the context of the Manson test, the most serious problems arise with the certainty, view, and attention variables, because they must be self-reported by the eyewitness. See Wells & Quinlivan, supra note 6, at 16-17.

(119.) See Deffenbacher et al., supra note 47, at 687, 699 (finding high stress level negatively impacts accurate identification); Steblay, supra note 48, at 415-17 (finding 9.8% decrease in identification accuracy when weapon present during encounter); see also Cutler et al., supra note 53, at 635 (finding reduction in eyewitness-identification accuracy when perpetrator wore hat during initial encounter but not in lineup). Cross-racial identifications are widely known to be especially prone to error. See supra note 55 and accompanying text (discussing race-bias variable). Out of the first 250 individuals exonerated through DNA evidence, approximately seventy-five percent of those who were convicted of rape (129 out of 171) were Black or Latino, whereas only thirty to forty percent of all rape convicts are minorities. Garrett, supra note 12, at 73, 73 n.112. Forty-nine percent of these rape-exoneree cases involved Black or Latino offenders and White victims. Id. at 73. In contrast, almost ninety percent of all sexual offenses are committed by offenders of the same race as their victims. Id.

(120.) See Distortions, supra note 38, at 138 (noting postidentification confirmatory feedback may cause witness to forget hesitation during identification process); Wells & Olson, supra note 39, at 283 (noting studies show lack of correlation between confidence of witness and accuracy of identification); see also Loftus et al., supra note 49, at 10 (finding people inaccurately remember duration when under stress). Witness confidence causes problems because suggestive procedures at the time of the lineup can increase the eyewitness's feeling of confidence, leading to a high level of confidence at trial even if the eyewitness initially felt unsure of his or her identification. See Garrett, supra note 12, at 63-68 (outlining manner in which eyewitness confidence may increase after initially tentative identification).

(121.) See Wells & Quinlivan, supra note 6, at 13-14. "Saying that the description is accurate because it fits the physical characteristics of the defendant presumes that the defendant and the culprit are the same person. And yet, that presumption is the exact proposition under contention." Id. at 12. If police do not accurately record an eyewitness's initial description of the perpetrator, it is difficult to ascertain whether an eyewitness's later description has evolved to match that of an identified defendant. Garrett, supra note 12, at 68.

(122.) See infra note 123 and accompanying text (discussing flaws of eyewitness-expert testimony). In addition to some inherent flaws in the efficacy of expert testimony, relying on expert testimony to combat the isidentification problem is currently impossible because the federal circuits disagree about whether such testimony is admissible. See, e.g., United States v. Brownlee, 454 F.3d 131, 141 (3rd Cir. 2006) (holding eyewitness-expert testimony admissible under standards enumerated in FRE 702); United States v. Smith, 148 Fed App'x 867, 872 (11th Cir. 2005) (holding eyewitness-expert testimony not useful to jury when determining eyewitness-identification reliability); United States v. Rincon, 28 F.3d 921, 926 (9th Cir. 1994) (holding case-by-case approach appropriate for admission of eyewitness-expert testimony).

(123.) See Poynter, supra note 72, at 171 (explaining average costs of expert witnesses). The amount of credibility a jury gives to an eyewitness's identification could depend entirely on the credibility and demeanor of the expert, not on the substance of the expert's testimony and the application of this testimony to the eyewitness-identification evidence at issue. See Friedland, supra note 69, at 165-66 (noting jury's ability to find expert witness credible or not).

(124.) See Benton et al., supra note 59, at 492 (noting research shows mixed results for Telfaire instruction efficacy in sensitizing jurors to accuracy factors); Sonenshein & Nilon, supra note 9, at 290 (examining efficacy issues concerning jury instructions). Jury instructions are often lengthy and confusing and may be incomprehensible to a layperson. See Sonenshein & Nilon, supra 9, at 290. Jurors may disregard an instruction, regardless of whether or not they understand it. See id. at 291. While more research is needed on the efficacy of jury instructions, there is some indication that instructions may be more accurate when tailored to the specific facts of a case, and when combined with expert testimony. See Garrett, supra note 81, at 494 (noting tailored instructions provided before eyewitness testimony may increase efficacy); Vallas, supra note 71, at 131-32 (suggesting jury instructions more effective when reiterating information introduced by expert witness).

(125.) See NIJ Guide, supra note 34, at 29-38 (establishing federal-identification-procedure recommendations). Between 2001 and 2009, states including Georgia, Maryland, New Jersey, North Carolina, Vermont, West Virginia, and Wisconsin have initiated studies and instituted various procedural reforms. See Reevaluating Lineups, supra note 2, at 22.

(126.) See Garrett, supra note 12, at 53 (noting many police departments have not significantly updated identification procedures since 1980s). Many police departments still do not have written protocols and do not provide training on proper procedures for conducting eyewitness identifications. Id.; see Sonenshein & Nilon, supra note 9, at 284-86 (discussing pilot reform programs testing eyewitness-identification procedure efficacy in states with procedural flaws).

(127.) See infra Part III.B (arguing for application of FRE 403). Currently, federal jurisdictions may implement whatever identification procedures they choose, because the NIJ Guide, while issued with the intention of increasing reliability of eyewitness identifications, merely created recommendations rather than mandates. See NIJ Guide, supra note 34, at iii-iv.

(128.) See Petraro, supra note 71, at pt. II.A n.43 (noting most states adopted FRE).

(129.) See Fed. R. Evid. 403 & advisory committee's note (explaining rationale of rule to prohibit juries from making decisions on improper bases).
   The case law recognizes that certain circumstances call for the
   exclusion of evidence which is of unquestioned relevance. These
   circumstances entail risks which range all the way from inducing
   decision on a purely emotional basis, at one extreme, to nothing
   more harmful than merely wasting time, at the other extreme.
   Situations in this area call for balancing the probative value of
   and need for the evidence against the harm likely to result from
   its admission.

Id. at advisory committee's note.

(130.) See Fed. R. Evid. 403; Garrett, supra note 12, at 48 (noting 190 out of 250 convictions in DNA-exoneration cases relied on eyewitness evidence); Eyewitness Misidentification, supra note 5 (noting nearly seventy-five percent of 300 mistaken convictions overturned by DNA evidence involved eyewitness identifications).

(131.) See supra Part II.A (outlining estimator and system variables identified in past thirty years of scientific research). In practice, judges could be informed about the current scientific developments relating to eyewitness identifications if the Federal Judicial Institute were to release a reference manual on this topic, as it did after Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). See supra note 105 (noting reference manual created to assist judges with assessing reliability of scientific expert testimony).

(132.) See supra Part II.A (outlining scientific research on memory and eyewitness identification produced in past thirty years). Scientific research on eyewitness memory constantly evolves, and there will always be areas where the strength of the research does not warrant exclusion of identification evidence under FRE 403. See State v. Henderson, 27 A.3d 872, 902 (N.J. 2011) (noting lack of quantitative and qualitative research on composites and identification). Compare Pozzulo & Lindsay, supra note 52, at 563, 565 (finding children between ages nine and thirteen more likely to make incorrect identifications), with Bartlett & Memon, supra note 52, at 321-23 (recognizing accuracy may also depend on relativity of young witness's age to age of perpetrator). Other remedies, such as expert testimony and jury instructions, should be utilized when exclusion under FRE 403 is inappropriate. See supra Part II.B.2 (discussing use of expert testimony and jury instructions).

(133.) See Fed. R. Evid. 403, 404, 702.

(134.) See, e.g., Fed. R. Evid. 403 (excluding relevant evidence when probative value substantially outweighed by unfair prejudice); Fed. R. Evid. 404 (excluding relevant character evidence when used to prove propensity in conformity therewith); Fed. R. Evid. 702 (excluding expert testimony when unreliable and unhelpful to trier of fact).

(135.) See Fed. R. Evid. 404(b) (preventing use of character evidence for proving propensity).

(136.) See Fed. R. Evid. 702 (requiring judicial reliability assessment). Distrust of juries is inherent in all judicial gatekeeping rules. See Seaman, supra note 104, at 875-76.
   [T]his distrust can take several forms, including distrust of
   jurors' abilities to understand and properly weigh certain kinds of
   evidence, suspicion of bias against or in favor of certain types of
   litigants, a fear that juries will disregard evidence to express
   dissatisfaction with the substance of legal rules, or apprehension
   that emotion will cause the jury improperly to weigh the evidence.


(137.) See supra note 80 (providing examples of evidence excluded under FRE 403).

(138.) See Fed. R. Evid. 403, 404, 702. The Supreme Court, in its only recent decision relating to eyewitness-identification evidence, alluded to the use of FRE 403 to exclude unreliable eyewitness-identification evidence in cases where constitutional requirements do not compel exclusion. See Perry v. New Hampshire, 132 S. Ct. 716, 729 (2012). While holding that constitutional due process does not require a preliminary judicial assessment of eyewitness-identification evidence potentially tainted by nonstate actors, the Court implied that FRE 403 is one of the "safeguards built into our adversary system that caution[s] juries against placing undue weight on eyewitness testimony of questionable reliability." See id. at 728-29.

(139.) See Miranda v. Arizona, 384 U.S. 436, 444 (1966) (requiring exclusion of incriminating statements made without procedural safeguards to protect Fifth Amendment rights); Weeks v. United States, 232 U.S. 383, 393 (1914) (establishing exclusionary rule for evidence obtained in violation of Fourth Amendment in federal prosecutions), overruled by Mapp v. Ohio, 367 U.S. 643 (1961). In some respects, unreliable-eyewitness-identification evidence threatens the integrity of the judicial process more than evidence obtained in violation of the Constitution. See People v. Adams, 423 N.E.2d 379, 383 (N.Y. 1981).
   The rule excluding improper showups and evidence derived therefrom
   is different in both purpose and effect from the exclusionary rule
   applicable to confessions and the fruits of searches and seizures.
   In the latter cases generally reliable evidence of guilt is
   suppressed because it was obtained illegally. Although this serves
   to deter future violations, it is collateral and essentially at
   variance with the truth-finding process. But the rule excluding
   improper pretrial identifications bears directly on guilt or
   innocence. It is designed to reduce the risk that the wrong person
   will be convicted as a result of suggestive identification
   procedures employed by the police.


(140.) See U.S. Const. amend. IV; Mapp v. Ohio, 367 U.S. 643, 655 (1961) (noting without exclusionary rule, "the assurance against unreasonable federal searches and seizures would be 'a form of words'"); see also Garrett, supra note 12, at 51 (recognizing victim-eyewitness identifications often crucial piece of prosecution's evidence in rape cases).

(141.) See Reevaluating Lineups, supra note 2, at 3-4 (outlining gravity of eyewitness-misidentification problem). The Manson Court noted that denying prosecutors relevant evidence might sometimes result in the guilty being set free. See Manson v. Brathwaite, 432 U.S. 98, 112 (1977). When the Massachusetts Supreme Judicial Court rejected the Manson test, however, it noted that the Manson Court failed to adequately consider that "the admission of unnecessarily suggestive identification procedures ... would likely result in the innocent being jailed while the guilty remain free." Commonwealth v. Johnson, 650 N.E.2d 1257, 1263 (Mass. 1995) (emphasis added). Thus, under a liberal standard of admission for unreliably obtained eyewitness-identification evidence, the result is to undermine the rationale behind the rule, because the converse of each mistaken conviction is guaranteed freedom for a guilty person. See id. Additionally, a more draconian approach to the exclusion of unreliable eyewitness-identification evidence would provide an incentive for law-enforcement agencies to reform their identification procedures, similar to the deterrence rationale behind the exclusionary rule for evidence obtained in violation of the Fourth Amendment. See Mapp, 367 U.S. at 655 (explaining deterrence rationale behind exclusionary rule).
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Author:Shell, Eva G.
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Date:Feb 1, 2013
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